Free Speech: For Whom is it Free?

WE THE PEOPLE of the United States…

Yesterday the so-called president of the United States had what should have been the pleasant task of honoring Navajo code talkers from World War II. As we all know by now, he did so at the White House, in front of a painting of Andrew Jackson, fetishized Native peoples, and then, for at least the twelfth time, referred to Elizabeth Warren as “Pocahontas.” Donald Trump’s and Elizabeth Warren’s workplace is the Unites States government, whose buildings include the White House, Congress, the Supreme Court, and media venues and publications. This racist epithet, repeated now so many times, constitutes not only demonstrated racial harassment of Elizabeth Warren as employee in the national workplace, but also racial harassment of Native peoples in general. This could be grounds for a Title VII lawsuit against the harasser-in-chief and should be added to the long list of discriminatory, harassing, and retaliatory actions taken by this individual.

Some of you out there might think, “Oh, come on. This is no big deal. These are just words. Let’s move on.” I would ask you, though, how often will we agree to move on? The racist-in-chief already lowered the bar so far so as to not only allow, but actually encourage, the violence of Charlottesville, thus chilling and degenerating conversations about racial justice, extreme incarceration, and hate speech. These highly public statements, made live, on the news, and impetuously, through Twitter, create a hostile work environment for the individuals targeted and for the groups the harasser-in-chief believes they represent. I also wonder if those who do not belong to legally protected categories but who do experience harm from the hostile work environments that impinge on others’ freedoms have some sort of claim here to insist on improved environments for all.

In this piece from The New York Review of Books (9-28-17), National Legal Director of the ACLU David Cole asks these important questions: “Does the First Amendment need a rewrite in the era of Donald Trump? Should the rise of white supremacist and neo-Nazi groups lead us to cut back the protection afforded to speech that expresses hatred and advocates violence, or otherwise undermines equality? If free speech exacerbates inequality, why doesn’t equality, also protected by the Constitution, take precedence?” Cole examines the elasticity of the First Amendment, stating that fewer millennials have faith in free speech than did previous generations and that some European nations differ from the United States in the scope of prohibitions against racist speech. While Cole acknowledges the importance of these points, as well as the significance of the 1993 collection of essays titled Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment, he still insists: “If free speech is critical to democracy and to holding our representatives accountable—and it is—we cannot allow our representatives to suppress views they think are wrong, false, or disruptive.” In a speech delivered in Lexington, Virginia, Virginia ACLU Board member Wornie Reed cogently and ardently defended free speech along the same lines, as he does in this piece about the Virginia ACLU’s defense of Charlottesville white supremacist rally leader Jason Kessler.

Ted Gup writes in “Free Speech, but Not for All?” (The Chronicle of Higher Education, 4-27-17): “Barring speakers or preventing hate speech does not safeguard the oppressed. It empowers the oppressors, and it suggests that their words are to be feared for a compelling, persuasive power that, absent the muzzle, might infect others.” As Gup defends free speech in his critique of Ulrich Baer’s argument, he makes reference to “Baer and his ilk.” He cites “abolitionists, gay and lesbian people, civil-rights activists, feminist, and others on the cutting edge of change” as groups who have benefited from unfettered free speech, but then uses Arthur Miller as the principal example of someone who was barred from speaking at the University of North Carolina. Arthur Miller did not suffer for lack of visibility and invitations to share his work publicly, but many others from the groups cited by Gup certainly have.

Cole, Reed, and Gup make excellent arguments in favor of maintaining free speech laws. These arguments have sound basis in constitutional law and knowledge of traditional touchstones for democracy. Nevertheless, I find the arguments also to be steeped in a nostalgia for the United States as the cradle of democracy from centuries past, when founding fathers owned human beings and limited the rights of enslaved individuals and women. Democratic freedoms played favorites back then, and they still do now. When I think about the $17 million of taxpayer money used by members of Congress to hush cases of harassment against them, I think again about who gets to speak, who is silenced, and who pays for it all.

My question, then, is this: At what point have we indulged free speech so thoroughly and allowed free speech to become so married to Second Amendment rights that free speech can be said to limit the freedoms of others? If African-Americans and other people of color felt unsafe just existing in the streets of Charlottesville on August 11 and 12, then they were less free to navigate the public sphere during those days. If Nazis and presidents continue to be given maximum public forums to expose hatred, they change the environment and the level of risk for the groups they hate (people of color, migrant peoples, women, non-Christians, LGBTQIA+ individuals, etc.). Why must someone’s right to use the N-word or the C-word, both of which can constitute physical threats, supersede others’ rights to move through public spaces, which include workplaces, restaurants and stores, schools, and government office buildings? If the Sessions Justice Department advocates for greater free speech, especially on college and university campuses, can we interpret this as providing a more ample forum for hate speech? If so, then hateful speech acts will require more corporeal forms of resistance, thus upping the ante on conflict and the real risks and dangers it represents. (*See Tiya Miles’ piece, “Fighting Racism Is Not Just a War of Words,” in the 10-21-17 The New York Times. See also Adam Harris’ free speech-hateful speech piece in the 10-25-17 The Chronicle of Higher Education.)

In her book License to Harass, Laura Beth Nielsen states: “Rather than seriously engaging in an analysis of the costs and benefits to society of rules that might limit such behavior [hate speech], American courts have treated such conduct as ‘speech,’ which can be regulated only if the state offers a compelling justification. This doctrinal treatment in effect grants a license to harass. The judicial protection of offensive public speech works to normalize and justify such behavior” (3). Nielsen then (on page 3, and later in Chapter 7) makes the point that the most legally restricted form of public/street speech is that of begging, a restriction which demonstrates a significant class bias. We might consider swinging the pendulum away from granting power to practitioners of hate speech and violent speech and towards those who have already been afforded certain protections under the law (Title VII, Title IX) precisely because of their historically limited free access to public spaces and media outlets.

The harasser-in-chief has created the biggest hostile work environment possible—the United States of America. We do not have to allow this to continue.